R. v. Biniaris

R. v. Biniaris
Collection
Supreme Court Judgments
Date
2000-04-13
Neutral citation
2000 SCC 15
Report
[2000] 1 SCR 381
Case number
26570
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 26570
Decision Content
R. v. Biniaris, [2000] 1 S.C.R. 381
Her Majesty The Queen Appellant
v.
John Biniaris Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Criminal Lawyers’ Association (Ontario),
the Innocence Project, the Association in Defence
of the Wrongly Convicted and
the Criminal Trial Lawyers Association of Alberta Interveners
Indexed as: R. v. Biniaris
Neutral citation: 2000 SCC 15.
File No.: 26570.
1999: October 5, 6; 2000: April 13.
Present: Lamer C.J.* and L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for british columbia
Criminal law -- Appeals -- Supreme Court -- Rights of appeal from substituted verdict -- Accused convicted of second degree murder -- Court of Appeal dismissing accused’s appeal but substituting conviction for manslaughter -- Whether Court of Appeal set aside conviction thereby providing Crown with right of appeal under s. 693(1) of Criminal Code -- Whether Court of Appeal affirmed conviction thereby providing accused with right of appeal from conviction on substituted offence under s. 691(1) of Criminal Code -- Whether there are co-existing rights of appeal for both accused and Crown from court of appeal order for substituted verdict -- Criminal Code, R.S.C., 1985, c. C-46, ss. 691(1) , 693(1) .
Criminal law -- Appeals -- Supreme Court -- Question of law -- Whether reasonableness of verdict involves question of law within meaning of ss. 691(1) and 693(1) of Criminal Code -- Criminal Code, R.S.C., 1985, c. C-46, ss. 691(1) , 693(1) .
Criminal law -- Reasonableness of verdict -- Standard of review -- Standard of review applicable by reviewing court in examining reasonableness of verdict -- Whether Yebes should be reaffirmed -- Whether verdict was unreasonable -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1) (a)(i).
The accused was charged with second degree murder. The accused and S, a young offender, participated in a senseless and violent beating which left a man dead. S threw the deceased against a plate glass window, then propelled him to the ground, causing the deceased to strike the back of his head on the pavement. Once the deceased was on the ground, S straddled the deceased’s thighs and began to punch the deceased in the stomach. The accused entered into the fray, ran up to the deceased and stomped on his forehead a number of times with sufficient force to leave tread marks from his shoes on the deceased’s forehead. The Crown’s expert testified that the fatal injuries to the deceased’s brain resulted from the accused’s actions. The defence expert was of the opinion that the deceased had sustained lethal brain injuries when S caused him to strike his head on the pavement, fracturing the thickest bone in the skull. During the course of the trial, after consulting with the defence expert and another expert, the Crown’s expert also came to share the view that the fatal injuries were attributable to the actions of S. The Crown’s expert was recalled and testified to this effect. In its closing submissions to the jury, the Crown maintained its original theory and invited the jury to rely on its common sense and to convict the accused of second degree murder as the perpetrator of the fatal injuries, notwithstanding the medical evidence to the contrary. The Crown also suggested to the jury that it could find the accused guilty of second degree murder as S’s co‑perpetrator or accomplice. The trial judge charged the jury that they should proceed carefully before rejecting the ultimately unanimous expert evidence regarding causation. The accused was convicted of second degree murder. The majority of the Court of Appeal dismissed the accused’s appeal but substituted a conviction for manslaughter on the basis that the jury’s verdict was unreasonable and unsupported by the evidence. The dissenting judge concluded that it was not unreasonable for the jury to convict the accused of second degree murder.
Held: The appeal should be allowed.
While the language of s. 686(1) (b)(i) and (3) of the Criminal Code does not contain an explicit direction to a court of appeal to set aside a conviction, when a court of appeal dismisses the accused’s appeal from the original conviction by substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the conviction by the trial court and also implicitly affirms the new conviction on the included offence. Thus, there are co‑existing rights of appeal for both the accused, under s. 691 , and the Crown, under s. 693 , to this Court from a court of appeal order for a substituted verdict.
This Court, in Yebes, decided unequivocally that the reasonableness of a verdict, within the meaning of s. 686(1) (a)(i) of the Criminal Code , involves a decision on a question of law, and as such gives rise to a further appeal to this Court. Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard. As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law. The conclusion that a finding by an appeal court that a verdict is unreasonable or cannot be supported by the evidence raises a question of law is in harmony with the overall intent and spirit of the two‑tier criminal appeal structure in the Criminal Code , even if there are some statutory constructions that may lend support to a different conclusion.
The test set out in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence. A dissent on the issue of whether the verdict was reasonable is a dissent on a question of law, whether the dissent is based on the articulation of the applicable test or on its actual application to the particular circumstances of the case. The proper test is “whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered”. In embarking on the exercise mandated by s. 686(1) (a)(i), the reviewing court must engage in a thorough re‑examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. It is not sufficient for the reviewing court to simply take a different view of the evidence than the trier of fact. Nor is it sufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. While a “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of the trier of fact. Rather, the appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence.
In the present case, the “real question to be faced by the jury” was whether the accused intended to cause the victim’s death or to cause bodily harm which he knew was likely to cause death and was reckless as to whether death ensued or not. The reasons of the majority of the Court of Appeal focused principally on the issue of causation and did not contain a thorough review and re‑examination of the evidence as it relates to intent. The determination of the intent or foresight of a person at the time of his participation in a homicide is often a difficult question of fact. The trial judge thoroughly canvassed all the evidence adduced on the issue of intent in her charge to the jury. There is nothing in the compendium of accumulated judicial experience that should cause concern that the jury went astray in its review and assessment of the evidence. Even though it might have been reasonable for the jury to conclude otherwise, it was perfectly reasonable for the jury to be satisfied beyond a reasonable doubt that the accused had acted with the requisite intent for murder. In light of his responsibility as a party, the fact that the specific blows inflicted by the accused were not the ones which were the immediate cause of death was of no significance. In overturning the verdict of the jury as unreasonable, the majority of the Court of Appeal was also concerned about the change in the Crown’s theory of the case and the jury’s ability to appreciate the nuances of all of this, as well as about the fact that the case was “highly emotional by reason of these outrageous assaults”. The concerns of the majority of the Court of Appeal were insufficient to set aside the verdict of the jury as unreasonable. They were more than adequately addressed by the trial judge, whose charge to the jury was instructive and fair. The verdict was one that this properly instructed jury, acting judicially, could reasonably have rendered, and it should be restored.
Cases Cited
Followed: R. v. Yebes, [1987] 2 S.C.R. 168; referred to: R. v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16; R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17; R. v. Nantais, [1966] 2 O.R. 246; R. v. McGloan, [1976] 2 S.C.R. 842; Mahoney v. The Queen, [1982] 1 S.C.R. 834; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221; Lampard v. The Queen, [1969] S.C.R. 373; Ciglen v. The Queen, [1970] S.C.R. 804; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. H. (D.S.) and N. (J.D.), [1994] 2 S.C.R. 392, rev’g (1994), 90 C.C.C. (3d) 564; R. v. Blundon (1993), 84 C.C.C. (3d) 249; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. Jensen (1996), 106 C.C.C. (3d) 430, appeal quashed, [1997] 1 S.C.R. 304; R. v. Osvath (1996), 87 O.A.C. 274, appeal quashed, [1997] 1 S.C.R. 7; R. v. Hamilton, [1997] Q.J. No. 67 (QL), appeal quashed, [1997] S.C.C.A. No. 105 (QL); Corbett v. The Queen, [1975] 2 S.C.R. 275; R. v. Burke, [1996] 1 S.C.R. 474; R. v. Reitsma, [1998] 1 S.C.R. 769, rev’g (1997), 97 B.C.A.C. 303; R. v. O’Connor (1998), 123 C.C.C. (3d) 487; R. v. Keeper (1993), 88 Man. R. (2d) 156; R. v. Malcolm (1993), 81 C.C.C. (3d) 196; R. v. Tat (1997), 117 C.C.C. (3d) 481; R. v. N.D., [1993] O.J. No. 2139 (QL); R. v. C.V., [1993] O.J. No. 1512 (QL); R. v. L. (J.H.H.P.) (1992), 75 C.C.C. (3d) 165; R. v. Vaillancourt (1999), 136 C.C.C. (3d) 530.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 21(1) , 675(1) (a), 676(1) (a) [am. 1997, c. 18, s. 93], 677 [repl. 1994, c. 44, s. 67], 686(1) [am. c. 27 (1st Supp.), s. 145; am. 1991, c. 43, s. 9 (Sch., item 8)], (3) [rep. & sub. c. 27 (1st Supp.), s. 145], (4) [am. idem; am. 1999, c. 5, s. 26], 691(1) [am. c. 34 (3rd Supp.), s. 10], 693(1) [rep. & sub. c. 27 (1st Supp.), s. 146; c. 34 (3rd Supp.), s. 12].
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 104 B.C.A.C. 203, 170 W.A.C. 203, 124 C.C.C. (3d) 58, [1998] B.C.J. No. 576 (QL), dismissing the accused’s appeal from his conviction on a charge of second degree murder and substituting a verdict of manslaughter. Appeal allowed.
William F. Ehrcke, Q.C., and Kate Ker, for the appellant.
Gil D. McKinnon, Q.C., and Peter J. Wilson, for the respondent.
Robert J. Frater and Morris Pistyner, for the intervener the Attorney General of Canada.
Robert Kelly, for the intervener the Attorney General for Ontario.
Carole Lebeuf and Maurice Galarneau, for the intervener the Attorney General of Quebec.
Frank R. Addario, for the intervener the Criminal Lawyers’ Association (Ontario).
Marlys A. Edwardh, for the intervener the Innocence Project.
Melvyn Green, for the intervener the Association in Defence of the Wrongly Convicted.
Written submissions only by Marvin R. Bloos, for the intervener the Criminal Trial Lawyers Association of Alberta.
The judgment of the Court was delivered by
Arbour J. --
I. Introduction
1 This appeal was heard together with R. v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16, and R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17. In this trilogy, the Court was asked to reconsider its decision in R. v. Yebes, [1987] 2 S.C.R. 168, and, in particular, to decide two issues of general application. First, whether the reasonableness of a verdict involves a question of law, within the meaning of ss. 691 and 693 of the Criminal Code, R.S.C., 1985, c. C-46 , so as to permit a further appeal to this Court from a decision by a provincial appellate court, and, second, what standard of review must be applied by the reviewing court in examining the reasonableness of a verdict. Each case involved, of course, an application of that standard to the facts of that case.
II. Factual Background
2 The respondent John Biniaris was 15 years old at the time of the events that gave rise to his conviction for second degree murder. He was tried in adult court, separately from his co-perpetrator, Stephen Stark, who was tried first and also convicted of second degree murder. The two had been involved in a brutal assault on the victim, Graham Niven, whom they had encountered by chance in the early morning hours of August 13, 1994.
3 Graham Niven was coming out of a Coquitlam, B.C., convenience store with 14-year-old Kaven Valin, when they came across a group of four youths, which included the respondent Biniaris and Stephen Stark. The events that followed were described at trial by Kaven Valin, and by Peter Lehtonen, one of the two other boys who were with Biniaris and Stark that night. While Niven and Valin were waiting for a taxi, Niven became involved in a conversation with the boys, and the subject of drugs came up.
4 Niven asked if anyone “did heroin”. Stark stood up and responded that he did. Niven said not to do heroin because “it fucked up your head”. Stark became angry and tensions mounted as Stark and Niven stood facing each other near the entrance to the store. According to Kaven Valin, shortly after the initial exchange between Stark and Niven, the respondent Biniaris, who was now standing beside Niven, told him to “make a move”. Stark threatened Niven, saying things such as “I’ll fuckin cut a hole in your head” and “Go in. Save yourself”. At that point, Stark and Niven grabbed each other. The events which followed lasted only 20 to 30 seconds. According to Kaven Valin, Stark threw Niven into the store’s plate glass window, causing Niven to hit his head against the window. Stark then spun Niven around quickly and forcefully pushed him to the ground, causing Niven to strike the back of his head on the pavement. Once Niven was on the ground, Stark straddled Niven’s thighs and started punching him in the stomach with a closed right fist while holding down Niven’s right arm with his left hand. At this point, and for the next five to ten seconds, the respondent Biniaris entered the fray. Peter Lehtonen testified that he thought he saw the respondent inflict a “medium strength” kick to the middle of Niven’s back just as he was attempting to raise his head and upper body off the ground by holding onto Stark’s jacket sleeves. He said the kick startled Niven and caused him to fall back to the ground. Lehtonen also testified that he thought he saw the respondent kick Niven on the top part of the head with “medium” force. Kaven Valin did not testify to any kicks. He saw the respondent run toward Niven and jump “hard” on the latter’s forehead roughly five times using his right foot, taking two or three steps back and forth in between jumps. The respondent stomped or jumped with sufficient force to leave tread marks from his shoes on Niven’s forehead. Lehtonen saw only two stationary up and down stomps, but he left the scene prior to the end of the attack. After the attack, the respondent Biniaris and Stark fled together.
5 Niven was deeply unconscious when emergency personnel arrived at the convenience store. He was brain dead at the time of his arrival at Royal Columbian Hospital and was pronounced dead some 10 hours later. Biniaris and Stark were arrested shortly before 11:00 p.m. on August 13, 1994. The arresting officers testified that the respondent expressed surprise when informed that he was under arrest for second degree murder.
6 The respondent’s trial before Boyd J. and a jury took an unusual course. The Crown’s theory was that the respondent Biniaris had caused Niven’s death and was guilty of second degree murder as a principal. As a result, much of the focus at trial was on the issue of causation. In turn, that issue rested largely on the medical evidence, which was both lengthy and complex, as it dealt with the causes of fatal brain injuries. Dr. Sheila Carlyle, the pathologist who performed the autopsy on the deceased, was called by the Crown. She and the pathologist called by the defence, Dr. Jennifer Rice, agreed on a number of points. For example, they agreed that there was medical evidence of only five head injuries -- three stomps to the face, a glancing blow or kick near the left eye and a fracture to the back of the skull -- and that to the extent that there may have been additional blows, they were not of sufficient force to produce bruising or broken bones. Further, they agreed that two of the three stomps were attributable to the shoes worn by the respondent. The source of the third stomp could not be identified while the source of the glancing blow or kick was not explained by either Dr. Carlyle or Dr. Rice.
7 However, the doctors disagreed about whether the fatal injuries suffered by Niven resulted from the fall or from the stomping. Dr. Carlyle testified that the respondent’s actions had caused Niven’s death. Dr. Rice was of the opinion that Niven’s fatal brain injuries were attributable to the actions of Stark, although she could not exclude the unlikely possibility that the stomping aggravated the already injured brain. Specifically, she was of the opinion that Niven had sustained lethal brain injuries when Stark caused him to strike his head on the pavement, fracturing the thickest bone in the skull.
8 Dr. Carlyle maintained her position on causation throughout her testimony in chief and under cross-examination. However, during the course of the trial, after consulting with Dr. Rice and with Dr. Charles Hirsch, an eminent American pathologist, she came to share Dr. Rice’s opinion. Dr. Carlyle was recalled and testified to this effect, conceding that the respondent’s stomping was distinctly unlikely to have caused Niven’s fatal injuries and that while she could not exclude the possibility that the stomping had enhanced the pre-existing brain injuries suffered by Niven as a result of Stark’s actions, this latter opinion was not something she felt “comfortable advancing with any scientific basis”.
9 Despite this dramatic change in the evidence, at the close of the trial the Crown maintained its original theory and suggested that, notwithstanding the consensus in the medical evidence, it was still open to the jury, as a matter of common sense, to conclude that the respondent had caused Niven’s death and that, if they found that he had the intent necessary for murder, then he was guilty of second degree murder as a principal. However, the jury was also offered two alternative routes to a conviction for second degree murder, each of which, like the primary route urged by the Crown, required proof of an intent to cause bodily harm that the respondent knew was likely to cause death and was reckless as to whether death ensued or not. First, even if the respondent had not caused Niven’s death, the Crown argued that the respondent was guilty as a co-perpetrator, having acted in concert with Stark with the necessary intent to sustain a conviction for murder. Second, it was suggested that the respondent could be found guilty of murder because he aided or abetted Stark and did so with the knowledge and intent for murder. In her charge, the trial judge warned the jury to be slow to reject the ultimately unanimous expert evidence regarding causation in favour of common sense.
10 The respondent was convicted of second degree murder and sentenced by Boyd J. to life imprisonment without eligibility for parole for five years.
III. Relevant Statutory Provisions
11 Criminal Code, R.S.C., 1985, c. C-46
675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
(a) against his conviction
(i) on any ground of appeal that involves a question of law alone,
(ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or
(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal;
. . .
676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
. . .
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;
. . .
691. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
. . .
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1) (a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
IV. Judgments Below
British Columbia Court of Appeal (1998), 124 C.C.C. (3d) 58
(i) Hall J.A., Braidwood J.A. concurring
12 Hall J.A. held that the respondent’s conviction for second degree murder was unreasonable and not supported by the evidence. Relying on s. 686(1) (b)(i) of the Criminal Code , he dismissed the appeal but substituted a verdict of manslaughter and remanded the matter to the trial court for sentencing. The conclusions of Hall J.A. are summarized in his reasons as follows (at p. 73):
By the end of the evidence, the case for a murder conviction against this accused was frankly a thin case. This case was also highly emotional by reason of these outrageous assaults. If one analyzes the activities of the two assailants, it seems to me to be an inescapable conclusion that the assaultive activity attributed to this [accused] all occurred after the infliction of the fatal harm and in circumstances where Biniaris’ intention to assist in a murder is unclear. Nor, as I observed, is this a joint venture case of the sort where one or more of the parties may possess a deadly weapon like a gun or a knife. Biniaris very briefly participated as a party in an affray that had a fatal consequence. To found a conviction for murder against this [accused], I believe that the trier of fact would be required to find that Biniaris aided or abetted Stark with a murderous intent of the sort set out in s. 229(a)(ii); R. v. Kirkness, [1990] 3 S.C.R. 74, 60 C.C.C. (3d) 97. On the facts here that was perhaps an open verdict one that was but very thinly supported by the evidence. The case for murder was sufficiently tenuous against Biniaris that I believe the murder verdict returned by the jury against this [accused] was not supported by the evidence.
13 Hall J.A. was very concerned about the shift in the underlying theory of culpability and, in particular, about the fact the Crown maintained its original position that the respondent Biniaris was the principal offender when, in Hall J.A.’s view, there was no longer any evidentiary basis to treat him as such.
(ii) Ryan J.A., dissenting
14 Ryan J.A. was of the opinion that the jury was entitled to conclude that the attack on Niven was a joint endeavor carried out by the respondent and Stark, and that the nature of the combined attack manifested the requisite intent to support a conviction for murder. She noted that the respondent had been the first to verbally challenge Niven and that he had entered the fray almost immediately after Stark had thrown Niven to the ground and begun punching him in the stomach. While there was evidence which could have been accepted by the jury as supporting the respondent’s position that he lacked the necessary intent, Ryan J.A. was of the opinion that “[a]ll of these facts were for the jury to assess” (p. 77). In this light, she concluded that it was not unreasonable for the jury to convict the respondent of second degree murder. She would have dismissed the appeal.
V. Analysis
A. Rights of Appeal from a Substituted Verdict
15 Shortly before the hearing of this appeal, the Court invited the parties and the interveners to address a preliminary legal issue, which is unique to this appeal. Of the three cases before us, Biniaris is the only one where the appeal is by the Crown, from a judgment of the Court of Appeal dismissing an appeal by the accused from his conviction for murder, but substituting a conviction for manslaughter. The question arises, therefore, as to whether a substituted verdict gives rise to a right of appeal by the Crown, whether with leave, or as of right on the strength of a dissent in the Court of Appeal, within the language of s. 693(1) of the Criminal Code .
16 In this case, the Court of Appeal, acting under s. 686(1) (b)(i) and (3) , dismissed the accused’s appeal of his second degree murder conviction and substituted a conviction for manslaughter. This was clearly the correct procedure to follow in the case of a substituted verdict. See R. v. Nantais, [1966] 2 O.R. 246 (C.A.). The issue was raised by this Court as to whether in substituting a verdict, a court of appeal “sets aside a conviction”, and consequently provides the Crown with a right of appeal under s. 693(1) , or whether, in substituting a verdict, a court of appeal “affirms a conviction” so as to give the accused an appeal from the conviction on the substituted offence under s. 691(1) , or, possibly, both.
17 In R. v. McGloan, [1976] 2 S.C.R. 842, at p. 848, Ritchie J., writing for the majority, considered the argument that the Crown had no right of appeal under s. 621(1) (now s. 693(1) ), on the grounds that a substituted verdict did not set aside a conviction. Ritchie J. rejected this argument, pointing to the order of the Supreme Court of Alberta (Appellate Division), which clearly stated that the original conviction was quashed and a new conviction substituted. It is frequently the practice of courts of appeal, in similar cases, to state in their orders that the original conviction is set aside and a new conviction is substituted.
18 While the language of s. 686(1) (b)(i) and (3) does not contain an explicit direction to a court of appeal to set aside a conviction, when a court of appeal dismisses the accused’s appeal from the original conviction by substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the conviction by the trial court and also implicitly affirms the new conviction on the included offence. Thus, there are co-existing rights of appeal for both the accused, under s. 691 , and the Crown, under s. 693 , to this Court from a court of appeal order for a substituted verdict.
B. Whether the Reasonableness of a Verdict Is a Question of Law
19 This Court, in Yebes, supra, decided unequivocally that the reasonableness of a verdict, within the meaning of s. 686(1) (a)(i) of the Criminal Code , involves a decision on a question of law, and as such gives rise to a further appeal to this Court. McIntyre J., speaking for a unanimous six-member panel of the Court, indicated that although the respondent Crown had raised that jurisdictional issue, it was not “strongly pressed” at the hearing of the appeal (p. 181). McIntyre J. recognized that although the proper qualification of the issue as either one of law, fact, or mixed fact and law was far from self-evident, there was no reason to treat it differently from the similar issue of whether a substantial wrong or miscarriage of justice had occurred, within the meaning of s. 686(1) (b)(iii). That having been interpreted as a question of law in Mahoney v. The Queen, [1982] 1 S.C.R. 834, McIntyre J. concluded that whether a verdict was unreasonable or not supportable by the evidence also amounted to a question of law.
20 The revisiting of this issue in the current trilogy is based, in part, on an argument that the decision in Yebes was an unjustified departure from the previous state of the law, and that it has not been consistently followed by this Court since.
21 The terminology “question of fact”, “question of law”, “question of mixed fact and law”, “question of law alone”, as used in the Criminal Code and in the case law in relation to rights of appeal has created serious difficulties of interpretation that are best resolved by a broad, purposive interpretative approach, adopted by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 (quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87):
Today there is only one principle or approach [to statutory interpretation], namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
22 The sole purpose of the exercise here, in identifying the reasonableness of a verdict as a question of fact, law or both, is to determine access to appellate review. One can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment. But when that exercise is undertaken as a jurisdictional threshold exercise, little is gained by embarking on such a case-by-case analysis. Rather, it is vastly preferable to look at the overall nature of these kinds of decisions, and of their implications. Ideally, threshold jurisdictional issues should be as straightforward and free of ambiguity as possible. Otherwise, as these and many similar cases illustrate, courts spend an inordinate amount of time and effort attempting to ascertain their jurisdiction, while their resources would be better employed dealing with the issues on their merits.
23 Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard. The process by which this standard is applied inevitably entails a review of the facts of the case. I will say more about the review process below. As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law. It is of no import to suggest that it is not a “pure question of law”, or that it is not a “question of law alone”.
24 Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.
25 Very little additional insight is gained by elaborate exercises in statutory interpretation. The intention of Parliament is better ascertained in broad terms than by microscopic examination of the relevant provisions of the Criminal Code . Although the cases before us today come as of right, on the basis of a dissent in the Court of Appeal, I think that the fact that they are appeals as of right obscures the true nature of the debate on the question of reviewability of alleged unreasonable convictions. Access to the Supreme Court is generally reserved for important cases that have legal significance. Inevitably, not all appeals as of right have great legal importance, although the assumption is that, as a category, they do. As with all other questions of law, not all dissents in an appeal court on the issue of unreasonable verdict rest on a question of great importance. However, if the reasonableness of a conviction is not a question of law, no right of appeal will exist from a decision on that issue, not even with leave of the Court. This result would, in my view, be incompatible with the intention of Parliament expressed, overall, in the totality of the scheme for appellate review.
26 Criminal appeals on questions of law are based in part on the desire to ensure that criminal convictions are the product of error-free trials. Error-free trials are desirable as such, but even more so as a safeguard against wrongful convictions. It is inconceivable that Parliament would have permitted access, by leave or as of right, to this Court, in the case of trials or appeals affected by legal error, but would have granted no access whatsoever in the case of possibly the gravest error of all: an unreasonable conviction, or one that cannot be supported by the evidence.
27 The conclusion that a finding by an appeal court that a verdict is unreasonable or cannot be supported by the evidence raises a question of law is in harmony with the overall intent and spirit of the two-tier criminal appeal structure in the Criminal Code , even if there are some statutory constructions that may lend support to a different conclusion. Several of these constructions were advanced, none of which, in my view, is conclusive.
(i) Sections 686(1) (a)(i) and 686(1) (a)(ii)
28 For instance, the contrast between s. 686(1) (a)(i) and s. 686(1) (a)(ii) has been relied upon to suggest that the opinion of a court of appeal that the verdict is unreasonable is merely an opinion on a question of fact. For convenience, I will set these subsections out again:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law. . . .
29 The reasoning is that if it were a question of law, there would be no need for both s. 686(1) (a)(i) and s. 686(1) (a)(ii). See Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221, at pp. 237-38; Lampard v. The Queen, [1969] S.C.R. 373, at pp. 380-81. This inference from the wording of the two subsections is far from inescapable. True, the remedial power contained in s. 686(1) (a)(i) may be linked to the jurisdiction of the court of appeal to entertain, with leave, questions of mixed fact and law or indeed questions of fact (see s. 675(1) (a)(ii)). However, it may also be viewed as a question of law that needed to be specifically identified as a basis for appellate intervention, since it would not fit well under the terminology used in s. 686(1) (a)(ii): an unreasonable verdict is not a “wrong decision on a question of law”. It is also arguable that the two subsections may coexist without creating a redundancy or in any way doing violence to the idea that an unreasonable verdict is a question of law, by contrasting the word “verdict” in s. 686(1) (a)(i) with the phrase “judgment of the trial court” in s. 686(1) (a)(ii). The “verdict” could be seen as referring to the wrong legal conclusion of the trial judge or the jury on the ultimate issue of guilt or innocence, as opposed to the wrong legal conclusions of the trial judge on a myriad of issues of substantive law, procedure and evidence.
(ii) “Question of Law Alone” and Unreasonable Acquittals
30 Various arguments have been advanced, based on the implications that should flow from the use of the expression “question of law alone” in s. 676(1) (a), which provides for appeals by the Crown to the court of appeal. These arguments are of little assistance or consequence in determining the scope of access to this Court under ss. 691 or 693 . The use of that expression can be taken to mean either that the Crown has a right of appeal from an acquittal only on a question of law, or that there is such a thing as a “question of law alone”, which is distinct from a “question of law”. I think it means the former. It is used in contrast to the right of the accused to appeal both on questions of law, questions of fact, and questions of mixed fact and law (see s. 675(1) (a)(i) and (ii)), and it is of no assistance in further defining the scope of the expression “question of law” in ss. 691 and 693 .
31 The fact that a “question of law alone” is nothing different than a “question of law”, and that the reasonableness of a verdict is a “question of law” within the meaning of s. 686(1) (a)(i), raises the question of whether the Crown will have a right of appeal against an “unreasonable acquittal”. Although this question does not squarely arise on the facts of any of the three cas